Doe, SORB No. 523391 v. Sex Offender Registry Board
Doe, SORB No. 523391 v. Sex Offender Registry Board
Opinion
*86 The plaintiff, John Doe, 1 appeals from a Superior Court judgment affirming his final classification by the Sex Offender Registry Board (SORB) as a level two sex offender. We conclude that the SORB hearing examiner (examiner) reasonably considered sufficiently reliable hearsay evidence in the form of police reports relating to Doe's uncharged sexual assault of a four year old boy. We conclude that, although the classification decision must be supported by clear and convincing evidence, subsidiary facts need be proved only by a preponderance of the evidence. Applying these standards to conclude that the examiner properly found by a preponderance of the evidence that Doe had sexually assaulted the boy, and that this and other substantial evidence supported the examiner's decision, we affirm.
1.
Background
. In November, 2008, police in New Paltz, New York, observed Doe openly watching pornography on a public library computer.
2
The officers observed that he was watching a video recording of a child no more than three years old performing oral sex on an adult male. The officers found other video recordings that Doe had downloaded, depicting girls approximately nine years old engaging
*1267
in sexual acts. In February 2009, Doe pleaded guilty to one count of possessing a recording of a sexual performance by a child, see
On March 5, 2009, while awaiting sentencing, 3 Doe and a work friend decided to get drunk in the friend's apartment. The friend resided with his girlfriend and her four year old son, but the girlfriend was not present that evening. At some point during the evening, Doe spontaneously confessed to his friend that he had touched the boy. The friend responded that this could not have happened because the two men were together all day. Doe repeated his confession and explained that it had occurred "when he was outside with [the] boy earlier in the day."
The friend attempted to ask the boy, whereupon Doe forced his way into the room, and a physical altercation ensued. When the police arrived, Doe stated, "I shouldn't have touched the three year old's penis, the female deputy even told me that," apparently *87 mistaking a male officer for a female in his intoxication. He then punched and kicked at the arresting officer and, finally, feigned unconsciousness when the police tried to interview him.
Later that day, at the police station, the boy told an officer that Doe "touched Mr. Winkie." The boy explained that "Mr. Winkie" was located "under [his] pants," and the boy's mother confirmed that this was the boy's term for his penis. Six days after the incident, during a children's protective services interview, the boy disclosed that Doe touched his genital area and that Doe also exposed his penis to the boy. Doe was charged with sexual abuse of a minor in the first degree, see
In late 2014 or early 2015, Doe moved to Massachusetts to live with his mother and, apparently, registered with SORB. In May 2015, a SORB member recommended that Doe be classified as a level three sex offender. Doe invoked his right to challenge the initial classification by claiming a de novo evidentiary hearing pursuant to G. L. c. 6, § 178L (1) ( a ). In June 2016, the examiner conducted a de novo hearing on the basis of documentary evidence submitted by both parties. 5
The examiner found that both the child pornography incident
6
and the sexual assault incident actually occurred. Regarding the sexual assault, the examiner found that the fact that Doe "report[ed] to both the [friend] and to the police that he had touched the [v]ictim, the [v]ictim also stated in the presence of a police officer that
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[Doe] had touched him, reported the same later on the same day, and then again when interviewed by child protective services several days later ... provides an indicia of reliability such
*88
that it is reasonable to conclude that the incident of sexual misconduct occurred." Armed with these factual findings, the examiner found multiple risk factors described in G. L. c. 6, § 178K (1), and 803 Code Mass. Regs. § 1.00 (2016), including repetitive and compulsive behavior, adult offender with a child victim, relationship between offender and victim, sexual misconduct in a public place, and extravulnerable victim. See
Doe, Sex Offender Registry Bd. No. 68549
v.
Sex Offender Registry Bd
.,
Doe promptly filed a complaint for judicial review in the Superior Court pursuant to G. L. c. 6, § 178M, and G. L. c. 30A, § 14. A Superior Court judge reviewed the administrative record and affirmed SORB's decision. This appeal followed.
2.
Standard of review
. "To determine the validity of an agency's decision, the reviewing court must determine whether the decision is supported by substantial evidence."
Doe, Sex Offender Registry Bd. No. 356011
v.
Sex Offender Registry Bd
.,
3.
Examiner's reliance on hearsay
. "A hearing examiner is not bound by the rules of evidence applicable to court proceedings."
Doe No. 10800
,
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Doe No. 356011
,
supra
at 77,
When reviewing an examiner's determination that hearsay evidence is substantially reliable, we ask whether "it was reasonable for the examiner to admit and credit" the facts described in the hearsay evidence.
Doe No. 356011
,
Here, the examiner reasonably determined that the police reports of the sexual assault bore sufficient indicia of reliability. See
Doe No. 10800
,
Similarly, the accusation was consistent. The boy confirmed three times, to three different persons, that he had been touched. First, the boy told the officer on the scene that Doe sexually assaulted him.
*1270 Later, at the police station, in the presence of his mother, the boy stated that Doe "touched Mr. Winkie," pointed to his penis area, and told the officer that "Mr. Winkie" was located "under [his] pants." Finally, during an interview with child protective services several days later, the boy reported that Doe touched his penis and that Doe exposed his penis to the boy. 7
Finally, the sexual assault is corroborated by Doe's own statements to multiple persons. Doe spontaneously admitted to his friend that he had touched the four year old boy. Once the police arrived, Doe again admitted to an officer that he "shouldn't have touched the three year old's penis."
It was reasonable for the examiner to reject Doe's contention that he was in a delusional state at the time he made these admissions,
*91
and thus they should not be credited. It is beyond cavil that Doe was intoxicated and combative at the time he made the admissions, and intoxicated enough that he misidentified an officer's gender. Nonetheless, Doe's explanation that he came to believe he molested the boy because a jail guard taunted Doe earlier strained credulity, and Doe had the presence of mind to refuse an interview by the police. The examiner was within her discretion to discredit Doe's explanation for his admissions. See
Doe No. 10800
,
Equally unpersuasive is Doe's contention that the examiner had to find the allegations of Doe's sexual misconduct unreliable because his friend testified at the preliminary hearing in a New York court that he did not witness the incident. Although the friend initially told Doe that the molestation could not have happened because the two were together the whole day, the friend stated that the crime was "very possible." He explained that, although he was generally with the friend or the boy, this was only for "most of the time." In short, the friend did not provide an alibi for Doe. Accordingly, it was reasonable for the examiner to credit the hearsay report that Doe sexually assaulted the four year old boy. 8
4.
Subsidiary findings
. In addition to challenging the underlying evidence, Doe challenges the examiner's factual finding that he molested the boy. Due process requires SORB to prove a sex offender's risk classification by clear and convincing evidence. See
Doe, Sex Offender Registry Bd. No. 380316
v.
Sex Offender Registry Bd
.,
In a criminal case, the Commonwealth must prove all elements of the crime beyond a reasonable doubt. The standard of proof at a criminal trial reflects
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the United States Supreme Court determination that "no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof."
Jackson
v.
Virginia
,
Similarly, in care and protection proceedings, termination of parental rights requires clear and convincing evidence of parental unfitness.
Care & Protection of Vieri
,
Applying this standard here, the examiner properly found by a preponderance of the evidence that Doe molested the boy. The hearsay reports of the incident, combined with corroboration and other indicia of reliability, provided the examiner with an adequate basis to conclude that the molestation occurred. Cf.
Bukin
,
*1272 Doe also challenges the examiner's factual finding regarding the warning he received about the consequences of viewing pornography in a public library prior to the child pornography incident. The examiner stated that the police "concluded that 'no criminal activity was afoot' " but that the officer "advised [Doe] of the consequences of such activity." The examiner found aggravating the fact that Doe viewed child pornography in the same public library approximately one year later after being warned not to do so. These findings are well supported by the police report recounting the warnings given. 9 Doe's argument that "[t]he Examiner treated Doe as if he was guilty of a crime" is misplaced, as the examiner found only that the warning had been given and appeared to credit the police report's conclusion that Doe had committed no crime on that occasion.
5.
Substantial evidence to support classification
. Doe challenges whether there is substantial evidence to support the examiner's classification. "Substantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion.' "
Doe No. 10800
,
We review the examiner's finding that clear and convincing evidence supported the classification to determine whether it was supported by substantial evidence. In doing so, we may usefully analogize to care and protection cases, where we review determinations of parental unfitness made under the clear and convincing standard. See
Adoption of Anton
,
Guided by these cases, we discern substantial evidence to support the examiner's classification decision where Doe was convicted of a child pornography charge and, while awaiting sentencing, molested a four year old boy in his friend's care. These facts amply supported the high risk factors found by the examiner, such as Doe's repetitive and compulsive behavior and evidence that Doe sexually assaulted an extravulnerable child victim. See
*1273
G. L. c. 6, § 178K (1) (
a
) (ii-iii). We can discern no error in the examiner's weighing of these aggravating factors against the mitigating factors. Cf.
Adoption of Jacques
,
Judgment affirmed .
A pseudonym.
Approximately one year earlier, New Paltz police received a similar complaint that Doe was viewing pornography on a computer at the same library. Although the police discovered nothing criminal, Doe was given a verbal warning about the consequences of such behavior.
Ultimately, Doe was sentenced to one and one-third to four years in prison. It appears that he was released from prison in November 2012.
The record does not reveal the precise reason for the dismissal, but the prosecutor stated at the preliminary hearing that "[t]he biggest problem that I have is that the victim here is a four and a half year old child that I simply can't have testify."
There was an earlier hearing at which, it appears, the examiner classified Doe as a level three sex offender. After the Supreme Judicial Court decision in
Doe, Sex Offender Registry Bd. No. 380316
v.
Sex Offender Registry Bd
.,
The examiner found that SORB had jurisdiction over Doe's out-of-State conviction because, under G. L. c. 6, § 178C, the New York conviction constitutes a "like violation" to the Massachusetts sex offense of possession of child pornography, G. L. c. 272, § 29C.
Although it is, of course, true that "statements supported with little, if any, indicia of reliability do not attain trustworthiness through a process of repetition,"
Doe No. 136652
,
The allegation that Doe exposed himself to the boy lacks many of these indicia of reliability. Although the examiner found in passing that the exposure occurred, it played no part in her analysis of the aggravating factors and bears little weight compared to molestation of a four year old boy. Accordingly, any error in this finding is inconsequential.
To the extent that Doe challenges the hearsay nature of this evidence, the examiner could find that a police report recounting actions taken by the police themselves was substantially reliable. See
Commonwealth
v.
Foster
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.